Evict Tenant from Second Apartment in Same Building

You may have a tenant holding on to two rent-regulated apartments in your building, but he lives in only one of them. For example, a tenant may once have rented two apartments to meet the needs of a large family. But now the tenant’s children are grown and gone, and the tenant no longer uses the second apartment as a residence. Instead, the tenant stores personal items there or occasionally puts up out-of-town guests.

In one case, a rent-stabilized tenant lived with another tenant in a different apartment in the same building. She used her apartment only for storage. The tenant claimed that she stayed away from her own apartment due to severe agoraphobia and that the landlord should be required make a reasonable accommodation for her disability [Fifth Avenue LLC v. Wertheimer, Oct. 2014].

Fortunately, courts have found that tenants can’t get away with these types of arrangements. The tenant may claim that the two apartments combined constitute one primary residence. But you can evict the tenant from the second apartment if you can show that it’s not being used by the tenant as a residence. Here’s what you should know.

Key: Is Tenant Living in Second Apartment?

The key to recovering a second apartment is to show that the tenant isn’t using it in conjunction with the first for basic living purposes. If a tenant can show that he uses both apartments as one complete primary residence, you won’t succeed in a nonprimary residence holdover proceeding. For example, in one case, an owner claimed that the tenant lived in another apartment on the same floor and used the second apartment only as an art studio. The court ruled against the owner after a trial. The tenant showed that he’d used both apartments as his primary residence for over 30 years. The tenant showed also that several prior landlords knew that he lived in both apartments and had consented to this arrangement [9554 NY Apt. Assocs., LLC v. Hennessy, April 2000].

Here are some factors that courts will look at to decide this:

• Does the tenant or any family member sleep in the apartment?
• Does the tenant or any family member eat in the apartment?
• Does the tenant or any family member conduct leisure activities (e.g., reading, listening to music) in the apartment?
• Is there a telephone in the apartment?
• Is there a television in the apartment?
• Is there furniture in the apartment?
• Is there a working refrigerator in the apartment?
• Is electricity used in the apartment?

If the answer to most or all of these questions is no, chances are the court will find that the tenant isn’t using the second apartment in conjunction with the first as a primary residence.

For example, in the case cited above, the owner produced videotape evidence showing that tenant entered her own apartment only one time during a one-year period between 2009 and 2010 before the case was commenced. The tenant had become unable to work and started collecting disability in 1996. She rarely left the other tenant’s apartment after she moved in. Anything she needed for living purposes she had delivered to her at the other tenant’s apartment. Between 2007 and 2013 there was almost no electrical usage at tenant’s apartment. And a psychiatrist that the tenant consulted by phone once a month for a while said that the tenant moved out of her apartment because she wanted to be with the other tenant. This contradicted the tenant’s claim that she was forced to move out of her unit because of a conflict with the owner’s contractor and as a result of her illness [Fifth Avenue LLC v. Wertheimer, Oct. 2014].

In another case, the tenant rented a three-bedroom apartment and a one-bedroom apartment on the same floor in the same building. Evidence showed that the one-bedroom apartment was used only occasionally by the tenant or his family members. There was no television in the apartment, the refrigerator was unplugged, and the Con Edison bills over an extended period showed that the electrical consumption was “virtually nil.” An appeals court ruled that the owner could evict the tenant from the one-bedroom apartment, since the tenant didn’t maintain it as a primary residence [Briar Hill Apartments Co. v. Teperman, April 1991].

But if the tenant is able to answer yes to most or all of these questions, the result will probably be different. The court is likely to find that the tenant is using the second apartment in conjunction with the first as a primary residence.

In one case, a tenant moved into a rent-controlled apartment in 1969. In 1971 she married a tenant who lived in an apartment on another floor. The tenant slept with her husband in his apartment, but used her apartment to shower, dress, and prepare for work. She paid the rent with checks bearing her maiden name and mailed them in envelopes separate from those carrying the rent check from her husband’s apartment.

Upon returning from work at 4:30 p.m., she typically went directly to her apartment. There she changed clothes and remained to read, paint, or telephone until 6:30 p.m. when she went to her husband’s apartment. She then usually spent the rest of the evening preparing for dinner, dining out, or relaxing in her husband’s apartment until 10 p.m. Her husband then used her apartment for two hours to read mail and periodicals and prepare correspondence for the next day. He kept all his personal and business files in her apartment.

When her husband traveled on business, about 50 weekdays a year, the wife slept in her apartment because it was more secure from intruders than the first floor. Also, the apartment was furnished to her personal tastes and she maintained a telephone there under her maiden name.

According to the court, since the tenant made ordinary residential use of both apartments, it ruled that the two combined were considered one primary residence [224 E. 18th St. Associates v. Sijacki, December 1987].

Second Apartment Used for Storage or Business

Showing a court that the tenant is using the second apartment for storage or business purposes could also be helpful to you. Courts have found that a tenant can’t keep a second apartment that’s being used for storage or business.

Only for storage. If the second apartment is used solely for storage, it can’t be considered an extension of the first apartment. For example, rent-controlled tenants (a husband and wife) used their second apartment to store 20,000 books. An appeals court ruled they weren’t using it as a primary residence. Although the husband claimed that he read and wrote in the second apartment during the day, pictures of the apartment showed that books took up most of the floor space. Also, the owner showed that the tenants used virtually no electricity in the second apartment. The court said that tenants can’t keep a rent-controlled apartment for convenience or for personal gain [Greenwich Village West Realty Co. v. Rosenthal, October 1995].

Primarily for business. Similarly, if the second apartment is used primarily for business, it can’t be considered an extension of the first apartment. That’s what an appeals court ruled in a case involving a rent-controlled tenant [Ter-Arutunian v. Stahl Associates Co., January 1987].

Using a rent-regulated apartment exclusively as a place of business or as a location used exclusively to pursue hobbies is against public policy. In one case, a tenant admitted that he didn’t live in a rent-regulated apartment but used it solely as a business office. He claimed that the landlord waived the right to evict him for nonprimary residence because the landlord knew that the tenant always used the apartment for business purposes. The appeals court ruled against the tenant because the owner and tenant can’t legally agree to exempt an apartment from rent control through private agreement based on nonprimary residence. To the extent that the landlord and tenant had an agreement, it was against public policy. The tenant’s duty to live in the apartment as a primary residence to maintain rent-control status was ongoing [Cenpark Realty LLC v. Mesnikoff, January 2006].